Competition Law, Extraterritoriality and Bilateral Agreements

Abstract

The chapter describes and compares the extraterritorial reach of US Antitrust and EU Competition Law. Beside providing a general overview of the unilateral extraterritorial enforcement, comity considerations and bilateral agreements, the chapter focuses especially on the current developments in the qualification of the effects doctrine, especially the qualifiers that the effects have to be 'direct' (or 'immediate'), 'substantial' and 'foreseeable'.

Some courts in the US have recently begun to take the 'directness' qualifier too literally. There is a danger that this will allow infringements with substantial and foreseeable domestic effects to go without antitrust scrutiny. The chapter argues that a criterion of 'directness' makes no sense where economic effects are concerned. In the US, where the Foreign Trade Antitrust Improvements Act (FTAIA) prescribes the qualifiers by statute, the directness qualifier should be interpreted as coextensive with the foreseeability qualifier. In the EU, where no statute prescribes the qualifiers established by the General Court in the Gencor decision, the directness/immediacy qualifier should be dropped altogether.

Keywords: extraterritoriality, effects doctrine, implementation principle, FTAIA, comity, bilateral agreements, antitrust, competition law

JEL Classification: F10, F13, K21, K33